Petteys v. Leith

• Court: South Dakota Supreme Court
• Writing for the Court: ROBERTS, Judge.
• Citation: Petteys v. Leith, 62 S.D. 149, 252 N.W. 18 (S.D. 1933)
• Decision Date: 29 December 1933
• Docket Number: 7467.
• Parties: PETTEYS v. LEITH.

252 N.W. 18

62 S.D. 149

PETTEYS v. LEITH.

No. 7467.

Supreme Court of South Dakota

December 29, 1933

Appeal from Circuit Court, Miner County; Alva E. Taylor, Judge.

Action by Calvin Petteys, an infant, by Zana Petteys, his guardian ad litem, against William Leith. From a judgment in favor of plaintiff, and from an order denying motion for new trial defendant appeals.

Reversed.

Hitchcock Sickel & Whiting, of Mitchell, for appellant.

W. E Weygent, of Howard, for respondent.

ROBERTS Judge.

On July 22, 1931, between 9 and 10 o'clock in the evening, Calvin Petteys, plaintiff and respondent, was riding as a guest in an automobile owned and driven by William Leith, defendant and appellant, on a graveled highway about five miles south of Carthage, when it collided with an automobile proceeding in the opposite direction, resulting in serious injuries to the respondent. This action was instituted, and respondent recovered judgment for personal injuries, and appellant appeals therefrom and from an order denying motion for new trial.

The appellant made a motion for a directed verdict on the ground that no negligence on his part had been shown. This motion was denied. The complaint alleges that the defendant was driving at an excessive rate of speed; that the headlights of defendant's automobile had not been tested; and that the headlights projected a glaring and dazzling light at the time of, and immediately preceding, the accident.

The appellant testified that he was driving his car at 30 or 35 miles an hour on the righthand side of the highway, and that he slackened his speed as he approached the other car, and was not driving "more than 30 miles an hour" when the collision occurred. This is contradicted by the respondent. He claims that the appellant was driving his car between 45 and 50 miles an hour, but admits that appellant slackened his speed before the collision, perhaps 5 miles an hour. On cross-examination respondent testified "Q. Did you think he was driving too fast? A. No, he was driving all right because there wasn't anything on the road and he was pretty sure of his driving.

"Q. He was a good driver? A. Yes.

"Q. So you weren't worried any about his driving up until the time of the accident? A. No, I wasn't.

"Q. You didn't tell him he was driving too fast? A. No, I didn't think he was driving too fast.

"Q. He was driving, I believe you said, close to the center of the road. A. That is where I think he was driving.

"Q. But he was on his own side of the road? A. Yes.

"Q. And he was well over on his own side of the road when the cars collided? A. I couldn't say, I don't remember, I know we were over on our side of the road but I couldn't say how far over. I know he was driving on his own side of the road at the time of the accident.

"Q. And that he had been driving on his own side of the road for some distance back? A. Well, he was driving on his own side, but he was pretty close to the center because there was no one else there. He was close to the center, but on his own side of the road for quite a distance back."

The uncontradicted evidence is that the headlights of appellant's car had not been tested to determine if they conformed to the requirements of statute. Appellant testified that his headlights "would not work on bright," and were "on dim with the beams deflected low" at the time of the accident.

The car with which the appellant collided was being driven by Mrs. Roy Pooley. She contended that she was blinded by the glaring lights of appellant's car. She testified: "There was a few seconds I couldn't see a thing. Then the impact. I was blinded by the glare of the lights on the Leith car. I was on the east side of the road until the lights blinded me. Well, I meant that I went to my side of the road until the lights blinded me. After that I do not know what happened." Laverna Pooley, another occupant of the car, testified: "I saw the car coming from the north when we turned the corner. After the corner was turned, our car pulled over to the east side of the road and started north along the east side of the road. I don't know now close my mother was driving to the east shoulder of the grade. I remember there was the blinding lights and then the collision. They were so bright I couldn't see where their car was."

Section 52, c. 251, Laws 1929, known as the Uniform Motor Vehicle Act, provides in part as follows:

"Section 52. Requirements as to Head Lamps and Auxiliary Driving Lamps. (a) The head lamps of motor vehicles shall be so constructed, arranged, and adjusted that, except as provided in subsection (c) of this Section, they will at all times mentioned in Section 50 and under normal atmospheric conditions and on a level road produce a driving light sufficient to render clearly discernible a person two hundred feet ahead, but shall not project a glaring or dazzling light to persons in front of such head lamp. (b) Head lamps shall be deemed to comply with the foregoing provisions prohibiting glaring and dazzling lights if none of the main bright portion of the head lamp beams rises above a horizontal plane passing through the lamp centers parallel to the level road upon which the loaded vehicle stands and in no case higher than forty-two inches, seventy-five feet ahead of the vehicle."

The statute provides that the headlights shall not project a glaring or dazzling light to persons in front of the headlights, but, for the purposes of the act, headlights are not glaring or dazzling if they project a light as provided in subsection (b). It is manifest that a driver of an automobile cannot be held liable on the ground that his headlights projected a glaring or dazzling light if, in fact they did not project a light in violation of the statute. If it were necessary to a decision, the sufficiency of the evidence to sustain the conclusion that the lights in question were glaring or dazzling would be questionable. Carriveau v. Vatapek, 204 Wis. 139, 235 N.W. 445. However, we do not think the question is necessarily involved, and for the purposes of this case we need not further consider the application of the statute. The evidence conclusively shows that, when the collision occurred, appellant's car was being driven on the right-hand side of the road. This is the testimony of both the appellant and the respondent. Mrs. Pooley testified that she did not drive her car to the left-hand side of the road, but she...